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8
Court of Criminal Appeal 17 December 2010

R v GREEN AND QUINN

[2010] NSWCCA 313

Also reported as (2010) 207 A Crim R 148
Drugs
CRIMINAL LAW SENTENCING APPEAL OFFENDERS DEPARTURE FROM PRIOR DECISIONS UTILITARIAN VALUE OF PLEA

Citation: R v Green and Quinn [2010] NSWCCA 313
Court: Court of Criminal Appeal, New South Wales
Date: 17 December 2010
Judge(s): Allsop P, McClellan CJ at CL, Hulme J, Latham J, McCallum J

Background

Two respondents were each convicted of cultivating 1,354 cannabis plants, a quantity exceeding the large commercial threshold of 1,000 plants under the Drug Misuse and Trafficking Act 1985. The offence carried a maximum penalty of 20 years' imprisonment and a standard non-parole period of 10 years. The operation was sophisticated and ongoing, involving multiple forest crop sites near Port Macquarie, hydroponic seedling production, hired labourers, coded communications, and vehicles registered in third-party names to conceal ownership. One respondent (Quinn) was the principal organiser; the other (Green) was involved at a senior level. A third participant, Taylor, had previously been sentenced to 3 years with an 18-month non-parole period on a lesser charge involving a commercial (not large commercial) quantity, and the Crown had not appealed that sentence.

The District Court sentenced Quinn to 6 years' imprisonment with a 3-year non-parole period, and Green to 4 years with a 2-year non-parole period, after allowing each a 20% discount for their guilty pleas. The Crown appealed both sentences as manifestly inadequate. A five-judge bench was constituted because of arguably conflicting earlier decisions on whether a Crown appeal can succeed when allowing it would create disparity with a co-offender's unappealed sentence.

Legal Issues

  • Whether the 20% plea discount for each respondent was excessive in the circumstances
  • Whether the sentencing judge erred by failing to make a finding as to where the offences fell on the scale of objective seriousness
  • Whether the sentencing judge erred by failing to state reasons for reducing the non-parole periods below the applicable standard non-parole period
  • Whether the degree of departure from the standard non-parole period manifested error
  • Whether the sentencing judge double-counted subjective features in finding special circumstances
  • Whether the sentences were manifestly inadequate
  • Whether the Court of Criminal Appeal, in a Crown appeal, has a discretion to increase a manifestly inadequate sentence even if doing so creates disparity with a leniently (and unappealed) sentenced co-offender, and if so how that discretion should be exercised

Decision

Ground 1: Plea discount

The sentencing judge allowed a 20% discount, informed in part by the 25% discount he had already given to Taylor. Hulme J noted that both respondents indicated their pleas within about a month of Taylor entering his, and that the trial, had it proceeded, would have been lengthy. While Hulme J stated he personally would not have allowed 20%, the Court was not persuaded the judge exceeded his discretion. This ground was not made out.

Grounds 2 and 3: Failure to find objective seriousness and failure to record reasons for departing from the standard non-parole period

These grounds were made out. The sentencing judge failed to place the offending on the scale of objective seriousness, contrary to established authority requiring that finding for offences subject to a standard non-parole period. He also failed to comply with the statutory obligation to record reasons for reducing non-parole periods below the standard. Hulme J noted the discipline inherent in those tasks may have prevented the manifestly inadequate sentences that resulted.

Ground 5: Double-counting of subjective features

This ground was not established. The cryptic nature of the sentencing remarks made it difficult to identify inappropriate double-counting, and the Crown did not specify which features were said to have been counted twice. The Court was not persuaded that impermissible double-counting had occurred.

Grounds 4 and 6: Manifestly inadequate sentences and departure from standard non-parole period

The Court unanimously found both sentences manifestly inadequate. Hulme J characterised Quinn's offending as at the mid-point of objective seriousness for offences of this type, and Green's as appreciably but not greatly below the mid-point. Both head sentences and non-parole periods fell far short of what the statutory framework demanded. Prior sentencing statistics and case law were of limited assistance because the standard non-parole period regime only commenced on 1 January 2008 and Parliament plainly intended sentences to increase from pre-existing levels.

The parity question: Whether the Court could increase sentences despite creating disparity with Taylor

This was the central issue requiring a five-judge bench. Three distinct approaches emerged across the judgments.

Hulme J (with whom McClellan CJ at CL and Latham J agreed on this point) concluded that disparity with a co-offender's sentence is a factor to be weighed in the exercise of the Court's discretion on a Crown appeal, but it is not a bar to allowing the appeal. The rule that a Court will not reduce an appropriate sentence merely to achieve parity with an inadequately sentenced co-offender does not carry across automatically to Crown appeals. A blanket rule precluding Crown appeals whenever disparity would result was rejected. The degree of inadequacy, the importance Parliament has attached to the offence, and the unexplained failure of the Crown to appeal Taylor's manifestly inadequate sentence were all relevant factors. In this case, the extent of inadequacy in the original sentences, the 20-year maximum, and the 10-year standard non-parole period outweighed parity concerns, and Hulme J proposed re-sentencing both respondents.

McClellan CJ at CL agreed with Hulme J's outcome and expressly declined to follow R v McIvor [2002] NSWCCA 490, finding it inconsistent with the community's legitimate expectation that a co-offender's erroneously lenient unappealed sentence cannot preclude correction of another offender's sentence. The decision in R v McIvor was expressly stated not to be followed.

Allsop P and McCallum J reached the opposite conclusion on the exercise of discretion. Their Honours agreed the sentences were manifestly inadequate, but held that the Court should not be the instrument of creating unequal justice by its own order. In a Crown appeal, the Court is itself the source of the disparity it would create, which engages different considerations from an offender's appeal. The degree of departure, while significant, was not so extreme as to constitute an affront to justice. In their Honours' view, the disparity that the proposed re-sentencing would create with Taylor's sentence was unacceptable and the Crown appeals should be dismissed in the exercise of discretion.

The majority (Hulme J, McClellan CJ at CL, and Latham J) allowed the appeals and re-sentenced both respondents, applying lesser sentences than Hulme J's initial proposal, partly to reflect some allowance for the disparity with Taylor and the Crown's unexplained failure to appeal that sentence. Allsop P and McCallum J dissented on the outcome.

Orders Made

  • The Crown appeal was allowed.
  • The sentences imposed by Boulton ADCJ on 14 August 2009 were quashed.
  • Brett Andrew Green was sentenced to a non-parole period of 3 years commencing 17 May 2009, together with a further term of 2 years commencing 17 May 2012 (total: 5 years).
  • Shane Darrin Quinn was sentenced to a non-parole period of 5 years commencing 30 April 2008, together with a further term of 3 years commencing 30 April 2013 (total: 8 years).

Key Takeaways

  • A majority of the Court of Criminal Appeal declined to follow R v McIvor [2002] NSWCCA 490, holding that an unappealed co-offender's manifestly inadequate sentence is not an automatic bar to a Crown appeal succeeding, even where allowing the appeal would create disparity between the respondent and the co-offender.
  • Disparity with a leniently sentenced co-offender remains a relevant factor in the exercise of the discretion on a Crown appeal, including on the extent of any sentence imposed, but it does not automatically defeat the appeal.
  • Sentencing judges dealing with offences subject to a standard non-parole period must make an explicit finding as to where the offending falls on the scale of objective seriousness, and must record reasons for departing below the standard non-parole period; failure to do so constitutes identifiable error.
  • The introduction of the standard non-parole period of 10 years for cultivating a large commercial quantity of cannabis plants was intended by Parliament to increase sentences beyond the levels reflected in earlier case statistics, and prior decisions must be read with that legislative intent in mind.
  • A plea of guilty entered on arraignment in the District Court, rather than at the earliest opportunity in the Local Court, ordinarily justifies a discount of no more than around 15%, though the precise figure remains a matter of discretion for the sentencing judge having regard to all the circumstances, including the complexity of any prospective trial.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated